("Green Tree") (collectively, "Defendants"). The matter is before the court on Eaton'smotion for a preliminary injunction to enjoin Fannie Mae from prosecuting a summaryprocess eviction case brought against Eaton in the Boston Housing Court. For thereasons discussed below, Eaton's motion for a preliminary injunction

is

ALLOWED.BACKGROUNDOn September 12,2007, Eaton executed a note in favor ofBankUnited, FSB inthe amountof$145,000 (the "Note"). To secure that obligation, Eatoncontemporaneously granted a mortgage on her home to Mortgage Electronic RegistrationSystems, Inc. ("MERS") acting as nominee for Bank United, FSB (the "Mortgage").MERS subsequently assigned the Mortgage to Green Tree; the assignment does notreference the Note.

1

Green Tree Servicing, LLC

I

~·

:

www.StopForeclosureFraud.com

Due

to

Eaton's failure to make payments on the Note, Green Tree moved toforeclose on her home. On November 24, 2009, Green Tree conducted a foreclosureauction where it submitted the highest bid

not granted, Eaton will suffer irreparable harm thatoutweighs any potential harm to the Defendants.Eaton has clearly demonstrated that she will suffer irreparable harm without

an

injunction and that such harm outweighs any harm Fannie Mae may suffer

if

an

injunction

is

granted. Absent an injunction, Fannie Mae will proceed with its evictionaction against Eaton and she will lose her home. The loss

of

one's property

is

aconsiderable harm. See Strayton

v.

Champion Mortg. (In

re

Strayton), 360 B.R.

8,

11

(Bankr.

D.

Mass. 2007) (in granting injunction based on debtor's claim

of

invalidforeclosure, finding that "the loss

of

the [d]ebtor's home would constitute an irreparableharm"). Fannie Mae, conversely,

is

likely to face only financial loss

if

an injunction

is

granted. Significantly, any such loss will be mitigated by monthly use and occupancypayments which have been ordered by the Housing Court during the pendency

of

thisaction

B.

Eaton is likely to succeed on the merits

of

her claim

of

invalid foreclosure.Eaton argues that the foreclosure

of

her home was invalid because Green Tree didnot hold the Note when the foreclosure occurred. The Defendants, however, contend thatbecause Green Tree possessed the Mortgage, it had sufficient authority to foreclose onEaton's home. This court finds that Eaton is likely to succeed on the merits

of

her claim.

1.

Under the common law, both mortgage

and

mortgage note must be

held

by the foreclosing entity to validlyforeclose.

In the course

of

commerce, the two instruments acquired by a lender when amortgage loan is funded may thereafter be separately transferred